Medical Malpractice Case Dismissed after Expert’s Testimony Deemed Inadmissible

Earlier this month, the Supreme Court of Alaska heard a case brought by a patient against the doctor and anesthesiologist who performed his open-heart surgery. In the case, Brandner v. Pease, the court ultimately determined that the plaintiff’s failure to provide admissible evidence from an expert required that the case be dismissed.

The Facts of the Case

According to the court’s written opinion, the plaintiff suffered a heart attack in 2009 and had a subsequent open-heart surgery that was conducted by the defendants. From the beginning, there were complications, starting with the fact that it took the anesthesiologist two attempts to intubate the plaintiff. Upon successfully intubating the plaintiff, the anesthesiologist administered propofol to induce anesthesia. After the medication was administered, the plaintiff’s blood pressure dropped, nearly sending him into another cardiac arrest. However, with CPR and additional drugs, his condition was stabilized.

Once the plaintiff was stabilized, the doctor attempted to place a transesophageal echo (TEE) to take images of the plaintiff’s heart for diagnostic purposes. The TEE placement was unsuccessful, but the doctors decided to continue forward with the surgery nonetheless. The procedure was completed, and 12 days later the plaintiff was discharged.

While the plaintiff seemed to be doing well initially, the plaintiff noticed lingering symptoms, including decreased heart function, limited short-term memory, and persistent pain. The plaintiff filed a medical malpractice lawsuit against the doctors, claiming that they were negligent in performing the procedure and that their negligence resulted in his injuries.

As is required in Alaska, the plaintiff obtained an affidavit from a medical expert prior to submitting the lawsuit. The affidavit stated that, in the expert’s opinion, propofol was “not the optimal choice.” The expert also opined that the delay in intubating the plaintiff, as well as the failure to use a TEE, likely contributed to the plaintiff’s injuries.

In a subsequent deposition, it was discovered that the plaintiff’s chosen expert had not practiced cardiovascular anesthesia since 2001 and was not qualified to practice in that area because he was not certified in the use of TEE probes. When asked, he also could not state that the defendants’ conduct fell below the acceptable level of care, saying only that it was “suboptimal.”

The defendants asked the court to disallow the expert’s testimony based on these facts, and the court agreed. The decision was affirmed on appeal.

Medical Malpractice Cases in Washington, D.C.

Unlike Alaska, Washington, D.C. does not have a statute requiring an expert’s affidavit prior to the submission of a case. However, that does not take away from the importance of expert selection in a medical malpractice lawsuit. In almost all Washington, D.C. medical malpractice cases, an expert is necessary. As a part of the expert’s testimony, he or she will be questioned about his or her qualifications and opinions. If the right expert is not selected, a case could be lost.

Have You Been the Victim of Medical Malpractice?

If you or a loved one has recently been the victim of medical malpractice in the Washington, D.C. area, you may be entitled to monetary compensation. The skilled advocates at the Maryland and Washington, D.C. personal injury law firm of Lebowitz & Mzhen Personal Injury Lawyers have decades of experience bringing cases on behalf of injured clients, and they know what it takes to be successful in both pre-trial negotiations and at trial. Call 410-654-3600 to set up a free consultation.

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